Wilson v. First National Trust & Savings Bank

McCOMB, J.

Appellant Sallyneil B. Wilson brought an action under section 1060 et seq., of the Code of Civil Procedure against respondent, the First National Trust and Savings Bank of San Diego, as trustee of a declaration of trust dated August 16, 1929, asking the court to declare the rights and duties of the parties thereto with respect to said trust as amended June 30, 1933.

Appellant recovered an interlocutory judgment in the action which was tried before Judge Gould. Thereafter the First National Trust and Savings Bank of San Diego instituted an action against Sallyneil B. Wilson for the purpose of having the parties’ rights determined under the above mentioned trust pursuant to three amendments of the declaration of trust. The two cases were subsequently consolidated for the purpose of trial, which trial took place before Judge Charles S. Burnell. In view of the fact that the judgment entereffiby Judge Gould was merely

mterlooutory,

Judge Burnell tried the first action de novo and entered a judgment in each action in favor of respondents. From these judgments the present appeals are prosecuted.

On or about August 16, 1929, Mrs. Grose created a declaration of trust naming the First National Trust and Savings Bank of San Diego as trustee. The trust instrument contained the following provision for distribution of the income from the corpus of the trust:

“The Trustee shall pay the net income derived by it from the trust estate of Juliet Guthrie Wilson, mother of the Trustor, for and during her lifetime.

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“Upon the death of Juliet Guthrie Wilson, the Trustee shall pay the net income derived by it from the trust estate to the issue of Juliet Guthrie Wilson living at each income payment date until the termination of this trust, as hereinafter provided.”

Paragraph six of the trust instrument reads as follows:

‘1 The Trustor, Edith W. Grose, during her life, upon thirty days’ written notice to the Trustee, shall have the right to revoke this trust in whole or in part and to alter or amend the same at any time, and from time to time, by a memorandum in writing delivered to the Trustee, provided such alteration or amendment shall be accepted by the Trustee, and to authorize and direct the Trustee to convey, assign, transfer, pay over or deliver to her order all or any part of the trust estate in such form as it may then exist. Such direction to the Trustee, upon the making of such conveyance, assignment, transfer, payment or delivery shall operate as a revocation of the trust hereby created, as to the property so conveyed, assigned, transferred, paid over or delivered by the trustee.”